The Young Texas Lawyer

U.S. District Judge Sidney Fitzwater in Dallas said in a Dec. 4 order that billionaire Dallas Mavericks owner Mark Cuban may seek documents and other information from the Securities and Exchange Commission in order to force the agency to pay his attorney’s fees after their insider-trading lawsuit was dismissed.

Cuban can conduct discovery over the legal-fees question to see if he can support his contentions that the SEC engaged in misconduct in investigating him and lacked a good- faith basis to sue him. “To the extent that he views it as the agency having tweaked him, he wants to tweak back,” Jacob Frenkel, a former SEC lawyer now in private practice, told Bloomberg.com of Cuban’s fee quest. “Is this likely to meet with success? No. Is that likely to stop him? No. Many who are accused by the SEC are pleased to take a dismissal and ride off into the sunset.”

Fitzwater dismissed the initial suit against Cuban on July 17, ruling the commission failed to allege he agreed to refrain from trading based on information about a private stock placement. The judge didn’t rule on the merits of the accusations by the SEC, which has appealed the dismissal.

“We’re very grateful that the judge has given us the opportunity to establish the facts that demonstrate we’re entitled to Mr. Cuban’s fees in defending this matter,” Christopher Clark, a lawyer for Cuban at Dewey & LeBoeuf LLP in New York, said.

In his ruling, Fitzwater said he was “unaware of any reason to deny a party reasonable discovery when seeking attorney’s fees.” The judge set a Feb. 1 deadline for the information gathering to be completed. He said he’s not sanctioning a “fishing expedition” and quoted a court decision holding that the “inner workings of administrative decision-making processes are almost never subject to discovery.”

Sonia Sotomayor won confirmation Thursday as the nation’s first Hispanic Supreme Court justice, a history-making Senate vote that capped a summer-long debate heavy with ethnic politics and hints of high court fights to come. The third woman in court history, she’ll be sworn in Saturday as the 111th justice and the first nominated by a Democrat in 15 years.

The Senate vote was 68-31 to confirm Sotomayor, President Barack Obama’s first Supreme Court nominee, with Democrats unanimously behind her but most Republicans lining up in a show of opposition both for her and for the president’s standards for a justice.

The confirmation hearings for Second Circuit Judge Sonia Sotomayor begin today at 9 a.m., and they are expected to last through the week. Sotomayor has already received the top rating from the American Bar Association, and polls show a slim majority of Americans believe she should be confirmed to be an Associate Justice of the U.S. Supreme Court.

Former Texas supreme court chief justice Thomas Phillips sat down with The Blog of Legal Times and discussed the recent Caperton ruling in which the U.S. Supreme Court, by a 5-4 vote, said the constitutional right to due process sometimes may require an elected judge to recuse in a case involving a campaign benefactor. The ruling could create a myriad of problems if not narrowly interpreted.

In the opinion, written by Justice Kennedy, the court concluded that, given the “serious risk of actual bias,” the Due Process Clause required the recusal of Judge Brent Benjamin. Case background and amicus briefs on the merits can be found at the Brennan Center For Justice. Below is the BLT Q&A with Phillips:

Q: What do you think is the main significance of Caperton?

Phillips: “Caperton established a principle that is really important: There are constitutional concerns with a judge sitting in judgment of a case where a party is a significant donor. At some point, the support becomes so substantial and so overwhelming that due process requires the judge to step aside, even if neither the donor not the judge did anything illegal or even unethical. Until now, that was an unanswered issue. That’s the most important thing in the case.”

Q: What are the misperceptions about the ruling?

Phillips: “Some have suggested that judges can never rule in any case where parties to a case or their attorneys are donors. It does no such thing. The holding, as I read it, is that due process is only violated when ‘[1] a person [2] with a personal stake in a particular case [3] had a significant [4] and disproportionate influence [5] in placing the judge on the case . . . [6] when the case was pending or imminent.’ Given how narrow that holding is, I’m not sure Caperton will ever be direct precedent for another recusal.”

Q: Why would the case not be a precedent?

Phillips: “There just aren’t a lot of cases where a large contribution can be attributed to a desire to affect the outcome of a particular case. Even the trial lawyers or the Chamber of Commerce spend millions of dollars in trying to influence the outcome of judicial races in a particular state, they are most likely spending money donated by a large number of individuals who are broadly interested in judicial philosophy. Not all of the donors will be trying to secure a particular outcome in a particular case. And unless they are, Caperton will not apply.”

Q: So when Chief Justice Roberts, in his dissent, worries about “Caperton motions” being filed in every case to recuse a judge, you don’t share that concern?

Phillips: “As the majority pointed out, past constitutional recusal cases have not spawned a lot of motions. The majority opinion recognized, even urges, states to pass recusal rules that are more rigorous than the due process floor in order to ensure the appearance and reality of impartial judges. The Caperton case may cause more of those rules-based motions to be filed, and state courts may have to grapple with the types of problems that the Chief Justice raised. And, on the whole, it will be good for these rather murky questions to be fleshed out. And, moreover, it will be good to have a heightened interest in what is required to have fair and impartial justices on the bench.”

Q: What could that heightened interest lead to?

Phillips: “I hope this decision will spur states to focus on whether our 19th century method of selecting judges works well in the 21st century. The old friends and neighbors method of selecting a judge has been replaced by the need for expensive media campaigns to explain who the candidates are, and the vast amounts of money at stake in the civil justice system has attracted these huge independent attack ads that so damage the credibility of our justice system. Now, more than ever, states need to scrap partisan contestable elections for the courts.”

Q: What does the decision say about the difference between judicial elections and other elections?

Phillips: “That’s another important principle in the case. No one would say that a Senator couldn’t vote on armed services appropriations merely because the defense industry had spent large sums in connection with the senator’s campaign. And yet that is precisely what the Court held with respect to a state judge. The opinion affirmed that, even if judges are selected in precisely the same as political officials, they have a fundamentally different role in government that raises concerns that are of constitutional magnitude.”

Back in April, we wrote about the “no-refusal” weekends during which the police department keeps judges on standby late into the night to issue warrants allowing them to draw blood for DWI suspects. This process will soon become standard operating procedure in Texas.

The Texas legislature passed key legislation during their last session that relaxed the requirements for obtaining a warrant to draw blood from a driver suspected of drunk driving. The bill is known as the Nicole “Lilly” Lalime Act.

Previously, only certain judges could issue the necessary warrant relating to suspected DWI offenses. Now the law has been changed to permit any magistrate who is a state-licensed attorney to issue a blood search warrant. Jails already have these magistrates available to around the clock and can now use them to issue blood warrants. The Dallas Police Department has already scheduled to go full time with blood search warrants in September of this year and other law enforcement agencies throughout the state are sure to follow.

Twitter is a microblogging site that has garnered a fair amount of attention lately by the media and to a certain extent, the legal industry. The site’s entire concept is based on asking a user “what are you doing” and allowing them update their answer to this question throughout the day from a computer or cell phone. According to The Legal Intelligencer, here are 20 Twitterers that lawyers should follow:

1. @22twts: Helping lawyers tell their stories, one tweet at a time.
2. @ABAjournal: Continuous news updates from the United States’ most-read and most-respected legal affairs magazine and Web site.
3. @amlawdaily: The source for daily legal business news and analysis of leading law firms.
4. @aricpress: Aric Press is editor-in-chief of The American Lawyer, an Incisive Media publication.
5. @barrettdavid: The LinkedIn Lawyer; solid content and links in all tweets mostly about social media with a few potential client referrals.
6. @dougcornelius: Chief compliance officer for a real estate private equity company trying to stay in touch and up-to-date with the world. GeekDad.
7. @jdtwitt: JD Supra. Ex-Yahoo writer. Editor. Poet. All-around word guy.
8. @justiacom: Justia Web site and lawyer directory announcements.
9. @kevinokeefe: Lawyer, dad to 5, husband to saint, Cubs-Packer fan. CEO of LexBlog, provider of professional blogs to law firms; operator of LexTweet;LexMonitor.
10. @lancegodard : International legal business development and marketing consultant. I help law firms grow and prosper.
11. @legalblogwatch: Blawgers Robert Ambrogi and Carolyn Elefant track, discuss and parse the latest developments in the legal blogosphere.
12. @mashable: The hottest Twitter news, Twitter tips and Twitter help. Plus, the best social media links around!
13. @mbeese: Leadership, biz dev and marketing consultant that works with lawyers and other professionals.
14. @michaelport: Bio father, friend, lover, revolutionary, big thinker … and best selling author.
15. @nancyfox: Business development; networking specialist and connector.
16. @nancymyrland: Professional marketing adviser: Are you ready to grow?
17. @neenjames: International productivity expert.
18. @philacourts: Philadelphia court news.
19. @taxgirl: Mom, tax lawyer, coffee drinker, manic blogger, iPod addict — not a sleeper.
20. @thelegalintel: The Legal Intelligencer is the nation’s oldest daily legal newspaper.

According to the Associated Press, President Obama will announce federal appeals judge Sonia Sotomayor for the Supreme Court today. If confirmed, she would be the first Hispanic to serve on the high court.

She is a self-described “Newyorkrican” who grew up in a Bronx housing project after her parents moved to New York from Puerto Rico. She has dealt with diabetes since age 8 and lost her father at age 9, growing up under the care of her mother in humble surroundings. As a girl, inspired by the Perry Mason television show, she knew she wanted to be a judge.

UPDATE: From the AP… President Barack Obama named federal appeals judge Sonia Sotomayor as the nation’s first Hispanic Supreme Court justice on Tuesday, praising her as “an inspiring woman” with both the intellect and compassion to interpret the Constitution wisely.

Obama said Sotomayor has more experience as a judge than any current member of the high court had when nominated, adding she has earned the “respect of colleagues on the bench,” the admiration of lawyers who appear in her court and “the adoration of her clerks.”

“My heart today is bursting with gratitude,” Sotomayor said from the White House podium moments after being introduced by Obama.

From Texas Lawyer… A former assistant attorney general alleges in a whistleblower suit filed May 18 that the Texas Office of the Attorney General fired her in 2008 for reporting that two OAG attorneys in the Dallas child support office tried “to suborn perjured testimony” from her about a Dallas judge.

Ginger Weatherspoon, who worked in the OAG’s child support division from July 2006 until November 2008, alleges in her original petition in Weatherspoon v. Office of the Attorney General of Texas that in February 2008, James Jones and Harry Monck, then-senior regional attorneys in the Dallas child support office, tried to coerce her to sign an affidavit containing “numerous misrepresentations” about a conversation she had had with 254th District Judge David Hanschen. Weatherspoon further alleges in the petition, filed in the 44th District Court in Dallas, that Jones and Monck “confined her in a room against her will” after she refused to sign the affidavit.

From The Legal Intelligencer…

If you’re filing a claim against the postal service, don’t just drop it in the mail because the courts won’t apply the ordinary presumption that a letter mailed is a letter received.

In a holding fraught with irony, the 3rd U.S. Circuit Court of Appeals has declared in Lightfoot v. United States that the so-called “mailbox rule” cannot be invoked against the U.S. Postal Service to save an otherwise time-barred claim. Instead, the court said, a plaintiff pursuing a claim under the Federal Tort Claims Act has the burden of proving that the federal agency was “presented” with a timely administrative claim, and that proof of mailing is not enough.

“The term ‘presented’ in the filing of an administrative claim means more than merely mailing the claim,” visiting Judge Richard G. Stearns of the District of Massachusetts wrote for a unanimous 3rd Circuit panel.

According to the AP, Justice David Souter is planning to retire after nearly two decades on the Supreme Court. Souter, 69, will leave the Supreme Court after the current term recesses in June. The AP has already speculated on a list of possible nominees. For more information, read the article from The National Law Journal.